January 29, 2020 Decisions

February 3, 2020
By PetroskeLaw

Family Court properly dismissed custody modification proceeding where prior petition was pending for the same relief
Matter of Thelot v. Patterson, 2018-04281

Appeal from an order of the Family Court which dismissed the mother’s petition to modify custody on the grounds that another petition was pending for the same relief. The new petition contained allegations similar to those within the first petition, as well as new allegations that she claimed demonstrated a change in circumstances. At a court appearance, the Family Court informed the mother that it was dismissing her second petition because of the initial petition pending for the same relief and that it would allow her to introduce evidence of any new allegations in the pending proceeding. The Appellate Division affirmed. Under CPLR 3211(a)(4), the court has the discretion in deciding whether to dismiss an action on the ground that another action is pending between the same parties on the same cause of action (Whitney v. Whitney, 57 NY2d 731, 732).”


Supreme Court erred in modifying custody and parental access, sua sponte
Schneider v. Schneider, 2018-15048

Defendant appealed a post-judgment order of the Supreme Court which sua sponte, made a determination as to whether there had been a change in circumstances and, thereafter, modified the custody order with respect to certain aspects of the defendant’s parental access. The Appellate Division found that the Supreme Court should not have awarded that relief since neither party sought modification of the custody order (see Tirado v. Miller, 75 AD3d 153, 157-158). The plaintiff had filed a motion to enforce certain custody provisions, and the defendant had cross-moved for enforcement of add-on expenses.


Record supports increased parental access for Father but not equal access as requested; Father should have right of first refusal on child care due to flexible work schedule
Matter of Yegnukian v. Kogan, 2019-01521

The father filed a petition seeking joint legal custody of the child and equal parental access for the parties, and the mother cross-petitioned for sole custody of the child, the Family Court awarded joint legal custody with physical custody to the mother, and set forth a parental access schedule for the father. The father appealed from the parental access schedule because it essentially denied that branch of his petition which was for equal parental access.

In this case, the parties have argued in regards to the amount of parental access the father should have with the child. It is undisputed that the mother was the primary physical custodian of the child, while the father’s parental access with the child increased throughout the child’s lifetime before the litigation ensued. The child attended a private nursery school for several hours in the mornings and was involved in extracurricular activities and the maternal grandparents cared for the child many weekday afternoons prior to the 2019-2020 school year. The father contended that he was willing and able to care for the child during those afternoons given his flexible work schedule. The child was set to attend public elementary school for the 2019-2020 school year.

The Family Court awarded the parties joint legal custody, finding that both were caring and appropriate caregivers. The court disagreed with the father’s request for equal parental access because he did not request such relief in his petition and the father had testified that he was planning to move from Forest Hills to Harlem. The court held that the father’s relocation would result in the child facing a lengthy commute to and from school multiple times throughout the week. The Appellate Division found that the trial court’s determination lacks a sound and substantial basis in the record.

The father expressly sought an equal division of parental access. The father testified that he primarily resided in Forest Hills, owned an apartment in Manhattan, and was in the process of purchasing another apartment. The Family Court prevented further inquiry into the new apartment purchase on the ground that it was speculative. However, during summation, the attorney for the child argued that the child would be subject to a lengthy commute and, during the following colloquy, the father stated that his new apartment was in Harlem.

The record lacked evidence that the father intended to use the Harlem apartment as a place for the child to stay over during school nights and evidence in the record shows that during previous overnight visitations with his child, they stayed at his home in Forest Hills instead of the Manhattan apartment. Furthermore, no evidence was presented that indicated where the child would be attending public school.

The Second Department concluded that the record supports the award of more parental access to the father, although, contrary to the father’s request, it does not believe that the parental access need be equal. To foster the best interests of the child and ensure stability for the child, the parental access schedule should be modified to consist of: (a) the father having alternate weekends from Thursday after school to return to school on Monday morning and (b) on the weeks that the father does not have weekend visits, Tuesday after school until return to school Friday morning. This schedule was determined in light of all of the circumstances, such as the mother having primary residential custody of the child for the child’s lifetime.

Lastly, since the father has a flexible work schedule, “it would be in the best interests of the child for the mother, prior to arranging for a nonparent to care for the child during a work period, to first afford the father the opportunity to care for the child during that time (see Matter of Saravia v. Godzieba, 120 AD3d 821, 822).


Court erred in disqualifying mother’s attorney for ex parte communication with the child where child’s emails forwarded to the attorney were unsolicited
Matter of Lopresti v. David, 2019-04808

The Family Court’s decision to grant that breach of the father’s petition which was to disqualify the mother’s attorney on the basis that the attorney engaged in ex parte communications with the parties’ child in violation of Rule 4.2(a) of the Rules of Professional Conduct (22 NYCRR 1200.0) is reversed, and that branch of the father’s petition is dismissed.

Rule 4.2(a) of the Rules of Professional Conduct (22 NYCRR 1200.0) provides that an attorney may not communicate with a represented party regarding the subject of the representation unless opposing counsel has consented or the communication is authorized bylaw. A violation of the rule against ex parte communications will support a motion seeking an attorney’s disqualification, including situations where a party is a child (see Matter of Madris v Oliviera, 97AD3d at 825; Matter of Brian R., 48 AD3d 575; Campolongo v Campolongo, 2 AD3d 476, 476).

While there was evidence that the child had forwarded emails that she had written to the attorney for the child to the mother and her attorney, the father failed to present evidence that the mother’s attorney solicited those emails or communicated with the child beyond that instance (see Matter of Madris v. Oliviera, 97 AD3d 823; cf. Matter of Brian R., 48 AD3d 575; Matter of Marvin Q., 45 AD3d 852).


Family Court erred in granting Father’s motion to dismiss Mother’s custody modification petition at the close of her case where she made prima facie showing of change of circumstances
Matter of Farouz v. Faltas, 2018-13708

The mother appealed from an order which granted the father’s motion at the close of the mother’s case, to dismiss the petition on the ground that the mother failed to establish a showing of change of circumstances sufficient to warrant a custody modification. The Appellate Division reversed.

The court found that the mother presented sufficient evidence to establish a prima facie case of a change of circumstances after accepting the mother’s testimony as true and affording her the benefit of every favorable inference (see Matter of Morales v. Goicochea, 175 AD3d 1294, 1295; Matter of Gonzalez v. Santiago, 167 AD3d at 887; Matter of Ruiz v. Travis, 84 AD3d 1242, 1243). The mother testified at the hearing that her obtaining suitable housing, being steadily employed, acquiring a vehicle, and that the father’s wife had physically abused the child constituted a change in circumstances sufficient to warrant a modification of the custody arrangement. The mother’s testimony and the information obtained during the in camera interview was sufficient to warrant a full inquiry into what custody arrangement would be in the child’s best interests (see Matter of Morales v. Goicochea, 175 AD3d at 1295-1296; Matter of Gonzalez v. Santiago, 167 AD3d at 887; Matter of Ruiz v. Travis, 84 AD3d at 1243). Therefore, the matter is remitted to the Family Court for a continued hearing on the mother’s petition to modify the December 2015 order.



Court properly denied petition claiming constructive emancipation; Father failed to meet burden that his behavior was not the major cause of the deterioration in his relationship with his children
Matter of Shisgal v. Abels, 2018-05520

First, on this appeal, the father failed to provide any proof of bias or prejudgment of the matter to warrant the conclusion that the Family Court’s denial of his motion to recuse was an improvident exercise of discretion (see Matter of O’Donnell v. Goldenberg, 68 AD3d at 1000; Impastato v. Impastato, 62 AD3d 752).

The father appealed from an order which denied his petitions to modify a prior so-ordered stipulation so as to award him custody of the parties’ children and for a downward modification of his child support obligation on the ground of constructive emancipation.

“Since a custody and parental access determination ‘necessarily depends to a great extent upon an assessment of the character and credibility of the parties and witnesses, deference is accorded to the hearing court’s findings in this regard, and its findings will not be disturbed unless lacking a sound and substantial basis in the record’” (Matter of Dekmeci v. Herbert, 167 AD3d at 878; see Matter of Estrada v. Palacios, 148 AD3d 804). Since the mother has been the children’s custodial parents for all of their lives and the father failed to present sufficient evidence that she is unfit to continue or that she engaged in parental alienation, the Family Court’s determination to deny the father’s petition has a sound and substantial basis in the record.

Further, the Family Court properly denied the father’s petitions for downward modification of his child support obligation. “Under the doctrine of constructive emancipation, a child of employable age who actively abandons the noncustodial parent by refusing all contact and parental access may forfeit any entitlement to support (Matter of Barlow v. Barlow, 112 AD3d at 818; see Matter of Grucci v. Villanti, 108 AD3d 626, 626-627; Schulman v. Schulman, 101 AD3d 1098, 1099). The father failed to meet his burden of demonstrating that the parties’ three oldest children were constructively emancipated and that his behavior was not the major cause of the deterioration in his relationship with his children.



Record supports Family Court award of sole custody to the Father given evidence of parental alienation; Court providently exercised discretion in declining to appoint attorney for 5 year old child
Matter of Ruiz v. Carie, 2018-11388

The parties, who were never married to each other, have one child born in 2013.  In June 2015, they separated and the mother left their apartment with the child. The father subsequently subsequently filed a petition for sole custody of the child, and the mother also petitioned for custody of the child. At a hearing, testimony was presented that the mother relocated to Boston, had another child the following year, and married that child’s father in December 2016. Further, the mother took the parties’ child to Boston after the Family Court had directed both parties not to leave the jurisdiction with the child. Evidence was also provided that the mother had the child baptized without noticing the father, and that the child was not prevented from calling the mother’s husband “dad.” The Family Court granted the father’s petition for sole custody of the child, with parental access to the mother, and denied the mother’s custody petition. The mother appealed.

The Second Department affirmed. The Family Court’s determination that it was in the best interests of the parties’ child to award sole custody to the father is supported by the record.  Further, the Family Court providently exercised its discretion in not appointing an attorney for the child based on the circumstances of the case, such as the child’s young age and the absence of any prejudice to the child’s interests (Matter of Quinones v. Quinones, 139 AD3d 1072, 1074).

Lastly, the mother’s argument that she was deprived of the effective assistance of counsel is without merit because the record reveals that she received meaningful representation (see Matter of Eltalkhawy v. Eltalkhawy, 134 AD3d 707, 708).



Family Court properly denied objections to Order terminating child support for failure to timely file same with an affidavit of service
Matter of H. (Anonymous) v. L. (Anonymous), 2019-02589

The Mother appealed from a Family Court Order which denied her objections to an order of the Support Magistrate which denied her motion to vacate her default and granted the Father’s petition to terminate his child support obligation.

The mother filed objections to the Support Magistrate’s order on July 10, 2018, but failed to file proof of service on the father. The Family Court denied the mother’s objections without prejudice to the refiling of her objections with proof of service by a specific date. The mother later filed only an affidavit of service on July 25, 2018, stating that the father was served, with a “written summation.” Six months later, the mother filed new objections to the June 26, 2018 order and an affidavit of service indicating service of the objections upon the father. The Family Court denied the mother’s new objections as untimely.

The Second Department determined that the father being served with “written summations” was legally insufficient even if it was timely filed. The mother failed to exhaust the Family Court procedure for review of her objections without proof of service of the objections upon the father (see Family Ct Act § 439[e]; Matter of Ishmael A.A.-S. v. Sacha C., 169 AD3d 662; Matter of Carroll v. Brodsky, 168 AD3d 727; Matter of Ndukwe v. Ogbaegbe, 150 AD3d 858). Further, contrary to the mother’s contentions, the second affidavit did not materialize until the mother attached a copy of it to her Request for Appellate Division Intervention (RADI) form and the mother never moved for leave to renew or reargue on the ground that the Family Court overlooked the additional affidavit (see CPLR 2221[a],[d],[e]; see generally Matter of Rosenberg v. Rosenberg, 145 AD3d 1015). Lastly, a “RADI form cannot be used by a party to unilaterally expand a record on appeal (see Matter of Bosse v. Simpson, 173 AD3d 856).  The order insofar as appealed from is affirmed.